Pending Proceedings

Federal Courthouse, Denver, CO

For all the power that judges wield in their courtrooms, they are powerless to hold members of the press in contempt for statements made outside of the courtroom unless the press statements pose a “clear and present danger” to the administration of justice. 1 And we’re not talking about danger to the judicial proceedings that is merely probable; the statements must “immediately imperil” the proceedings: 2

“the law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.”

The lawyers involved in such cases, however, are held to a tighter standard. They may be punished if their statements made in relation to a pending case pose a “substantial likelihood” of material prejudice to the proceedings. 3

This treatment is due to the fact that lawyers involved in pending cases have “special access to information through discovery and client communications;” this gives their statements more authoritative weight – raising the danger of prejudice. 4 And as the Supreme Court noted in Gentile v. Nevada, this rule does not prohibit speech altogether; it “merely postpones the attorneys’ comments until after trial.” 5

For an example of how this has played out in social media, look no farther than the blockbuster trial of five former New Orleans police officers for killings committed in the immediate aftermath of Hurricane Katrina. In 2011, the officers were convicted on numerous federal counts relating to the killings and subsequent cover-up. But in late 2013, the convictions were reversed and a new trial ordered.

Why?

Because it turned out that, during the proceedings, prosecutors in the U.S. Attorney’s office had posted anonymous online comments online bashing the defendants and defense witnesses. Judge Kurt Englehardt characterized the commenting as “grotesque prosecutorial misconduct” that had created a “prejudicial, poisonous atmosphere” around the case. It’s hard to imagine a clearer case of media comments having materially prejudiced the proceedings.